Cali v. City of Poughkeepsie

Appellate Division of the Supreme Court of New York

Cali v. City of Poughkeepsie

84 A.D.3d 1229, 923 N.Y.S.2d 880

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 24, 2011

StatusPublished

Cited by7 cases

This text of 84 A.D.3d 1229 (Cali v. City of Poughkeepsie) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cali v. City of Poughkeepsie, 84 A.D.3d 1229, 923 N.Y.S.2d 880 (N.Y. Ct. App. 2011).

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Opinion

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated February 22, 2010, which denied the petition.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petition. The petitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The petitioner’s ignorance of the notice of claim requirement is not a reasonable excuse (see Matter of Padgett v City of New York, 78 AD3d 949, 950 [2010]; Matter of Werner v Nyack Union Free School Dist., 76 AD3d 1026 [2010]). The petitioner’s additional excuse, improperly raised for the first time in a reply affirmation (see Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]), that she only recently realized the severity of her injuries, is belied by the record (see Matter of Cuda v RotterdamMohonasen Cent. School Dist., 285 AD2d 806, 806-807 [2001]).

Moreover, the petitioner failed to offer any proof suggesting that the City of Poughkeepsie acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period or within a reasonable time thereafter (see Hebbard v Carpenter, 37 AD3d 538, 540 [2007]; Matter of Carpenter v City of New York, 30 AD3d 594, 595 [2006]; Matter of Shapiro v County of Nassau, 208 AD2d 545 [1994]). The petitioner provided only her own unsubstantiated allegations and those of [1230]*1230her attorney regarding the contents of a police accident report (see Washington v City of New York, 72 NY2d 881, 883 [1988]; State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 35 AD3d 718 [2006]; Matter of Martinez v New York City Hous. Auth., 250 AD2d 686, 687 [1998]).

Accordingly, the Supreme Court properly denied the petition for leave to serve a late notice of claim. Rivera, J.E, Angiolillo, Eng, Chambers and Sgroi, JJ., concur.

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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Dutchess County (Sproat, J.), dated February 22, 2010, which denied the petition.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in denying the petition. The petitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The petitioner’s ignorance of the notice of claim requirement is not a reasonable excuse (see Matter of Padgett v City of New York, 78 AD3d 949, 950 [2010]; Matter of Werner v Nyack Union Free School Dist., 76 AD3d 1026 [2010]). The petitioner’s additional excuse, improperly raised for the first time in a reply affirmation (see Troy v Town of Hyde Park, 63 AD3d 913, 914 [2009]), that she only recently realized the severity of her injuries, is belied by the record (see Matter of Cuda v RotterdamMohonasen Cent. School Dist., 285 AD2d 806, 806-807 [2001]).

Moreover, the petitioner failed to offer any proof suggesting that the City of Poughkeepsie acquired actual knowledge of the essential facts constituting the claim within the 90-day statutory period or within a reasonable time thereafter (see Hebbard v Carpenter, 37 AD3d 538, 540 [2007]; Matter of Carpenter v City of New York, 30 AD3d 594, 595 [2006]; Matter of Shapiro v County of Nassau, 208 AD2d 545 [1994]). The petitioner provided only her own unsubstantiated allegations and those of [1230]*1230her attorney regarding the contents of a police accident report (see Washington v City of New York, 72 NY2d 881, 883 [1988]; State Farm Mut. Auto. Ins. Co. v New York City Tr. Auth., 35 AD3d 718 [2006]; Matter of Martinez v New York City Hous. Auth., 250 AD2d 686, 687 [1998]).

Accordingly, the Supreme Court properly denied the petition for leave to serve a late notice of claim. Rivera, J.E, Angiolillo, Eng, Chambers and Sgroi, JJ., concur.

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84 A.D.3d 1229, 923 N.Y.S.2d 880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cali-v-city-of-poughkeepsie-nyappdiv-2011.

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